ARTICLES OF INCORPORATION
OF
MAG-WELL, INC.
I, the undersigned natural person of the age of eighteen
years or more, acting as incorporator of a corporation under
the Texas Business Corporation Act, do hereby adopt the
following Articles of Incorporation for such corporation:
ARTICLE I
The name of the corporation is MAG-WELL, INC.
ARTICLE II
The period of its duration is perpetual.
ARTICLE III
The purpose for which the corporation is organized is to
transact any or all lawful business for which corporations
may be incorporated under the Texas Business Corporation
Act.
ARTICLE IV
The aggregate number of shares which the corporation shall
have authority to issue is 1,000,000 shares of common stock
at no par value.
ARTICLE V
The corporation will not commence business until it has
received for the issuance of its shares consideration of the
value of One Thousand and No/100ths Dollars ($1,000.00),
consisting of money, labor done or property actually
received.
ARTICLE VI
The post office address of the corporation's initial
registered office is 409 Nolana, Suite 3, McAllen, Texas
78504. The name of its initial registered agent at such
address is John Corney.
ARTICLE VII
The number of directors constituting the initial Board of
Directors is one (1). The name and address of the persons
who are to serve as Directors until the first annual meeting
of shareholders or until their successors be elected and
qualify as follows: John Corney P. 0. Box 5875 McAllen,
Texas 78502
ARTICLE VIII
The initial bylaws of the corporation shall be adopted by
the Board of Directors. The power to alter, amend or repeal
the bylaws or adopt new bylaws is vested in the Board of
Directors, subject to repeal or change by action of the
shareholders.
ARTICLE IX
The name and address of the incorporator is as follows: John
Corney 409 Nolana, Suite 3 McAllen, Texas 78503
IN WITNESS WHEREOF, I have hereunto set my hand this 16 day
of June, 1988.
THE STATE OF TEXAS COUNTY OF HIDALGO I , Nanci B. Brown a
notary public do hereby certify that on this 16th day of
June, 1988, personally appeared before me, JOHN CORNEY, who
being by me first duly sworn, declared that he is the person
who signed the foregoing document as incorporator, and that
the statements therein contained are true.
/s/ Nanci Brown
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION
OF
MAG-WELL, INC.
Pursuant to the provisions of Article 4.04 the Texas
Business Corporation Act, the undersigned corporation adopts
the following Articles of Amendment to its Article of
Incorporation.
ARTICLE I
The name of the corporation is "Mag-Well, Inc."
ARTICLE II
The following amendments to the Articles of Incorporation
were adopted by the shareholders of the corporation on May
21, 1990: Article IV of the Articles of Incorporation are
hereby amended to read as follows: Article IV The authorized
stock of the corporation may not be changed without the
affirmative vote of 100% of the outstanding stock of the
corporation.
(1) The shares of the corporation's capital stock which are
authorized but unissued, if any, may be issued by the
corporation at such times, for such prices or other
consideration (but not less than the par value of such
shares) and upon such other terms and conditions as may be
determined by a majority of a quorum of the Board of
Directors of the corporation, in their sole discretion, at
any regular or special meeting of the Board called and held
in conformity with the by-laws of the corporation, subject
to applicable statutory provisions of the State of Texas.
(2) The holder of any Common Stock of the corporation shall
be entitled to preemptive rights, upon any future sale or
issue of any additional shares of stock or other security of
any class of the corporation, whether now" or hereafter
authorized, or whether issued for cash, property, or
services, or as a dividend or otherwise.
(3) Subject to applicable statutory provisions of the State
of Texas, the corporation shall have the right to purchase
shares of its stock in the open market.
(4) It is expressly provided that there shall be cumulative
voting of the shares of the capital stock of this
corporation, whether now or hereafter authorized, for the
election of the Directors thereof.
(5) Unless otherwise required by the Texas Business
Corporation Act, as amended from time to time, any contract
or act that shall be approved or ratified by the vote of a
majority of a quorum of the voting shares of the corporation
represented in person or by proxy at any shareholders'
meeting shall be as valid and binding upon the corporation
and upon all of the shareholders as if it had been approved
or ratified by every shareholder.
(6) Any director or the entire Board of Directors may be
removed from office, either for or without cause, at any
special meeting of shareholders by the affirmative vote of a
majority in number of shares of the shareholders present in
person or by proxy and entitled to vote, if notice of the
intention to act upon such matter shall have been given in
the notice calling such meeting. If the notice calling such
meeting shall so provide, the vacancy caused by such removal
may be filled at such meeting by affirmative vote of a
majority of the shares of the shareholders present in person
or by proxy and entitled to vote.
ARTICLE III
Further, the following additional amendments to the Articles
of incorporation were adopted by the Shareholders of the
corporation on May 21, 1990: The Articles of Incorporation
are hereby amended by adding the following provision is to
the Articles of Incorporation by and through this amendment
as follows:
ARTICLE X
Section 1. Interest of Directors in Contracts. No contract
or other transaction (i) between the corporation and one or
more of its directors, or (ii) between the corporation and
any firm of which one or more of its directors are members
or employees or in which they are otherwise interested, or
(iii) between the corporation and any corporation or
association in which one or more of its directors are
shareholders, members, directors, officers, or employees or
in which they are otherwise interested, shall be void or
voidable by reason of such directorship in this corporation
or such interest in such other firm, corporation, or
association, notwithstanding the presence of such director
or directors at the meeting of the Board of Directors of
this corporation which acts upon or in reference to such
contract or transaction and notwithstanding his or their
participation in such action, if (i) the fact of such
interest shall be disclosed or known to the Board of
Directors of this corporation and the Board of Directors
shall authorize, approve or ratify such contract or
transaction by a vote of a majority of the directors
present, such interested director or directors to be counted
in determining whether a quorum is present, but not to be
counted in calculating the majority necessary to carry such
vote, or if (ii) the fact of such interest shall be
disclosed or known to the shareholders and the shareholders,
by written consent or by vote of holders of record of a
majority of all the outstanding shares of stock entitled to
vote, shall authorize, approve, or ratify such contract or
transaction; nor shall any director be liable by reason of
such directorship or interest in this corporation for any
profits realized by or from or through any such transaction
or contract of this corporation so authorized, ratified or
approved. Nothing herein contained shall create liability in
the events described above or prevent the authorization,
ratification, or approval of such transactions or contracts
in any other manner permitted by law. This section shall not
be construed to invalidate any contract or other transaction
which would otherwise be valid under the common and
statutory law applicable thereto.
Section 2. Liability of Directors in Certain Cases.
A director shall not be liable for his acts as such if he is
excused from liability under Section B, Section C, Section
D, Section E and Section F of Article 2.41 of the Texas
Business Corporation Act, and, in addition, to the, fullest
extent permitted by the Act, each officer, director, and
member of any executive committee shall, in the discharge of
any duty imposed or power conferred upon him by the
corporation, be fully protected from liability to the
corporation or other-wise if, in the exercise of ordinary
care, he acted in good faith in reliance upon the books of
account or reports made to the corporation by any of its
officers, directors; agents, or by an independent certified
public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by such
committee, or in reliance upon other records of the
corporation.
Section 3. Indemnification of Directors and Officers.
To the fullest extent permitted by law, the corporation
shall indemnify each present and future director and
officer, his heirs, executors, and administrators, against
expenses and liabilities incurred by him in connection with
or arising out of any action, suit or proceeding in which he
may be involved by reason of his being or having been a
director or officer of this corporation, or, at its request,
of any other corporation of which it is a stockholder or
creditor and from which he is not entitled to be indemnified
(whether or not he continues to be such officer or director
at the time of incurring such expense), such expenses to
include, but not to be limited to, court costs and
attorneys' fees, and the cost of reasonable settlement
(other than amounts paid to the corporation itself). The
corporation shall not, however, indemnify such director or
officer with respect to matters as to which he shall admit
that the claim made against him is just or as to which he
shall be finally adjudged in any such action, suit or
proceeding to be liable for his own knowing or intentional
misconduct; and in the event of a settlement, such
indemnification shall be provided in connection with such
matters covered by the settlement as to which the
corporation is advised by its counsel that the person to be
indemnified did not commit such a breach of duty. The
foregoing right of indemnification shall not be exclusive of
other rights to which any director or officer may be
entitled by law under Article 2.02-1 of the Texas Business
Corporation Act, contract, or by the by-laws of the
corporation.
ARTICLE XI
Each shareholder of this corporation in accepting the status
of shareholder agrees to be bound by the terms of a
Stockholder-Cross Purchase Agreement entered into between
all the Shareholders and the corporation which shall
restrict the transfer, sale and assignment of all the shares
of common stock of this corporation owned by every
shareholder. The provisions of this Article may not be
amended, revoked, or ,altered in any way without the
favorable vote of 100% of the "outstanding common stock of
the corporation"; however, the Board of Directors of the
corporation with the written consent of holders of 100% of
the shares at the time outstanding may irrevocably waive the
application of this Article as to any specific shareholder
of the corporation. The provisions of this Article may be
specifically enforced in any Court of competent jurisdiction
inasmuch as the shares of this corporation are unique. Each
certificate representing shares of this corporation's stock
shall bear the following legend which shall be notice of
this Article:
"BY AGREEMENT AMONG THE CORPORATION AND ITS SHAREHOLDERS,
RESTRICTIONS HAVE BEEN PLACED UPON THE TRANSFER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE. THE CORPORATION WILL
FURNISH TO THE RECORD HOLDER OF THIS CERTIFICATE, WITHOUT
CHARGE, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE, A COPY OF
THAT AGREEMENT."
Such certificates shall be endorsed on the front thereof as
follows: "SEE RESTRICTIONS ON TRANSFER HEREOF ON REVERSE
SIDE."
ARTICLE IV
The number of shares of the corporation outstanding at the
time of such adoption was 10,000 shares; and the number of
shares of the corporation entitled to vote thereon was
10,000 shares.
ARTICLE V
The number of shares of the corporation voting for such
amendment was 10,000; and the number of shares of the
corporation voting against such amendment was zero.
Effective the 21st day of May, 1990, but executed on this
the 26 day of 1990.
Attest:
Mag-Well, Inc
By: /s/John Corney
President
By: /s/James L. Hall
Secretary
STATE OF TEXAS
COUNTY OF HIDALGO
The undersigned Notary Public hereby certifies that on this
26th day of November, 1990, personally appeared before me
John Corney and James L. Hall, respectively, the President
and Secretary of Mag-Well, Inc., who, each being by me first
duly sworn, declared that they signed the foregoing document
in the capacities therein set forth and declared that the
statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the
day and year first above written. Notary Public, State of
Texas
/s/Juanita Silva
My Commission Expires: 1-2-93
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION
OF
MAG-WELL, INC.
Pursuant to the provisions of Article 4.04 of the Texas
Business Corporation Act, the undersigned Corporation adapts
the, following Articles of Amendment to Articles of
Incorporation.
ARTICLE ONE
The name of the corporation is "Mag-Well, Inc."
ARTICLE TWO
The following amendments to the Articles of Incorporation
were adopted by the shareholders of the Corporation an April
22, 1994.
The amendment alters Article IV of the Articles of
Incorporation, and the full text of Article IV, as altered,
is as follows:
"Article IV
The aggregate number of Shares which the Corporation shall
have authority to issue is 1,000,000 shares of common stock
at no par value. The shares of common stock shall have no
preemptive or preferential rights of subscription concerning
further issuance or authorization of the Corporation's
shares of stock. The number of authorized shares of any
class of stock of the Corporation may be increased or
decreased by amendments to these Articles of Incorporation.
Each share of common stock shall entitle the holder thereof
to one vote, in person or by proxy, an any matter upon which
holders of common stock are entitled to vote. There shall
not be cumulative voting of the shares of the capital stock
of the Corporation."
The amendment alters Article VII of the Articles Of
Incorporation, and the full text Of Article VII as altered,
is as follows:
"Article VII
The Board of Directors of the Corporation shall consist of
one or more members. The number of directors shall be fixed
by or In the manner provided in the Bylaws. Any director may
be designated as an advisor director rather than a regular
voting director at any annual or special meeting of the
shareholders.
The amendment deletes all of Article XI of the Articles of
incorporation. The part that was deleted reads as follows:
"Article XI
Each shareholder of this corporation in accepting the status
of shareholder agrees to be bound by the terms of a
Stockholder-Cross Purchase Agreement entered into between
all the Shareholders and the corporation which shall
restrict the transfer, sale and assignment of all the shares
of common stock of this corporation owned by every
shareholder. The provisions of this Article may not be
amended, revoked, or altered in any way without the
favorable vote of 100% of the outstanding common stock of
the corporation; however, the Board of Directors of the
corporation with the written consent of holders of 1004 of
the shares at the time outstanding say irrevocably waive the
application of this Article as to any specific shareholder
of the corporation. The provisions of this Article may be
specifically enforced in any Court of competent jurisdiction
inasmuch as the shares of this corporation are unique. Each
certificate representing shares of this corporation's stock
shall bear the following legend which shall be notice of
this Article:
BY AGREEMENT AMONG THE CORPORATION AND ITS SHAREHOLDERS
RESTRICTIONS HAVE BEEN PLACED UPON THE TRANSFER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE. THE CORPORATION WILL
FURNISH TO THE RECORD HOLDER OF THIS CERTIFICATE, WITHOUT
CHARGE, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTZRED OFFICE, A COPY OF
THAT AGREEMENT."
Such certificates, shall be endorsed on the front thereof as
follows:
"SEE RESTRICTIONS ON TRANSFER HEREOF ON REVERSE SIDE,"
ARTICLE THREE
The number of shares of the Corporation outstanding at the
time of such adoption was 100,000; and the number of shares
of the Corporation entitled to vote thereon was 100,000.
ARTICLE FOUR The number of shares of the Corporation voting
for such amendments were 100,000; and the number of shares
of the corporation voting against such amendments were 0.
The holders of all of the shares outstanding and entitled to
vote on said amendments have signed a consent in writing
adopting said amendments.
/s/William W. Dillard
President
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on this 11th of
March 1999, by William W. Dillard, Jr.
/s/Nita R. Mastin
Notary Public in the State of Texas
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
(After Issuance of Stock)
I, William W. Dillard, Jr. President and Secretary of Mag-
Well, Inc., certify that:
1. He is the duty elected President and Secretary,
respectively, of Mag-Well, Inc. Charter No. 01080651 a Texas
corporation.
2. The original Articles were filed in the Office of the
Secretary of State on June 20, 1988.
3. As of the date of this certificate One Hundred Thousand
(100,000) shares of Common Stock issued and outstanding.
4. That on February 15, 1999, at a duly noticed meeting of
the shareholders of Mag-Well, Inc., a vote was taken whereby
Seventy One Thousand Six Hundred Fifty (71,650) shares voted
in favor and none voted against a motion to approve the
following amendments to the Articles of Incorporation:
ARTICLE 4 is amended to read as follows.
"The aggregate number of shares which this corporation shall
authority to issue shall consist of 20,000,00 shares of
Common Stock having a $.001 par value, and 5,000,000 shares
of Preferred stork having a $.001 par value. The Common
and/or Preferred Stock of the Company be issued from time to
time without prior approval by the stockholders. The Common
and/or Preferred Stock may be issued for such consideration
as may be fixed from time-to time by the Board of Directors.
The Board of Directors may issue such shares of common
and/or Preferred Stock in one or more series, with such
voting Powers, designations, preferences and rights or
qualifications, limitations or restrictions thereof as shall
be stated in the resolution or resolutions. "
5. That it was also approved that the common shares
outstanding be split forward at a rate of 120 to 1.
DATED: February 15, 1999.
/s/ William W. Dillard, Jr. President and Secretary
BYLAWS
OF
MAG-WELL, INC.
Contents
Article 1: Offices
1.01 Registered Office and Agent
1.02 Other offices
Article 2: Shareholders
2.01 Place of Meetings
2.02 Annual Meeting
2.03 Voting List
2.04 Special Meetings
2.05 Notice
2.06 Quorum
2.07 Majority vote; Withdrawal of Quorum
2.08 Method of Voting
2.09 Record Date; Closing Transfer Books Action Without
Meeting
2.11 Order of Business at meetings
Article 3: Directors
3.01 Management
3.02 Number; Qualification; Election; Term
3.03 Removal
3.04 Vacancies
3.05 Election of Directors
3.06 Place of Meetings
3.07 First Meetings
3.08 Regular Meetings
3.09 Special Meetings
3.10 Quorum; Majority Vote
3.11 Compensation
3.12 Procedure
3.13 Action Without Meeting
3.14 Interested Directors, Officers and Shareholders
Article 4: Executive committee
4.01 Designation
4.02 Number; Qualification; Term
4.03 Authority
4.04 Change in Number
4.05 Removal
4.06 Vacancies
4.07 Meetings
4.08 Quorum; Majority Vote
4.09 Compensation
4.10 Procedure
4.11 Action Without Meeting
4.12 Responsibility
Article 5: Notice
5.01 Method
5.02 Waiver
Article 6: Officers and Agents
6.01 Number; Qualification; Election; Term
6.02 Removal
6.03 Vacancies
6.04 Authority
6.05 Compensation
6.06 President
6.07 Vice President
6.08 Secretary
6.09 Assistant Secretary
6.10 Treasurer
6.11 Assistant Treasurer
Article 7: Certificates and Shareholders
7.01 Certificates
7.02 Issuance
7.03 Payment for Shares
7.04 Subscriptions
7.05 Lien
7.06 Lost, Stolen or Destroyed Certificates
7.07 Registration of Transfer
7.08 Registered Owner
Article 8: General Provisions
8.01 Dividends and Reserves
8.02 Books and Records
8.03 Annual Statement
8.04 Checks and Notes
8.05 Fiscal Year
8.06 Seal
8.07 Resignation
8.08 Amendment of Bylaws
8.09 Construction
8.10 Indemnification
8.11 Table of Contents; Headings
Article 1: Offices
1.01 Registered Office and Agent:
Until the Board of Directors otherwise determines, the
registered off ice of the Corporation required by the Texas
Business corporation Act to be maintained in the State of
Texas and the registered agent shall be the registered
office and agent named in the original Articles of
Incorporation of the Corporation, or such other office and
agent as may be designated from tire to time by the Board of
Directors in the manner provided by law. Such registered
office need not be identical to the principal place of
business of the Corporation.
1.02 Other offices:
The Corporation may also have offices at- such other places
both within and without the State of Texas as the Board of
Directors may from time to time determine or the business of
the corporation may require.
Article 2: Shareholders
2.01 Place of Meetings: All meetings of the shareholders for
the election of directors shall be held at such time and
place, within or without the State of Texas, as shall be
stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.02 Annual Meetings:
An annual meeting of the shareholders, commencing with the
year 1989 shall be held each year an a day during the month
of April to be selected by the Board of Directors. if such a
day is a legal holiday, then the meeting shall be on the
next secular day following. At the meeting, the shareholders
shall elect directors and transact such other business as
may properly be brought before the meeting.
2.03 Voting List:
At least ten days before each meeting of shareholders, a
complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, With the address of
each and the number of voting shares held by each, shall be
prepared by the officer or agent having charge of the stock
transfer books. The list, for a period of ten days prior to
the meeting, shall be kept an file at the registered office
of the Corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. The
list shall also be produced and kept open at the time and
place of the meeting during the whole time thereof, and
shall be subject to the inspection of any shareholder during
the whole time of the meeting.
2.04 Special Meetings:
Special meetings of the shareholders for any purpose or
purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, or by these Bylaws, may be called
by the president, the Board of. Directors, or, the holders
of not less than one-tenth of all the shares entitled to
vote at the meetings. Business transacted at a special
meeting shall be confined to the object stated in the notice
of the meeting.
2.05 Notice:
Written or printed notice stating the place, day and hour of
the meeting and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be
delivered not less than ten nor more than fifty days before
-the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the
officer or person calling the meeting, to each Shareholder
of record entitled to vote at the meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the
United States mail addressed to the shareholder at his
address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid.
2.06 Quorum:
The holders of a majority of the shares issued and
outstanding and. entitled to vote thereat, present in person
or represented by proxy, shall be requisite and shall
constitute . a quorum at all meetings of the shareholders
for the transaction of business except as otherwise provided
by statute, by the Articles of incorporation or by these
Bylaws. if a quorum is not present or represented at a
meeting of the shareholders, the shareholders entitled to
vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time,
without notice other than ,announcement at the meeting,
until a quorum is present or represented. At such adjourned
meeting at which a quorum is present or represented, any
business may be transacted which might have been transacted
at the meeting as originally notified.
2.07 Majority Vote; Withdrawal of Quorum:
When a quorum is present at any meeting, the vote of the
holders of a majority of the shares having voting power,
present in person or represented by proxy, shall. decide any
question
brought before such meeting, unless the question is one upon
which, by express provision of the statutes or of the
Articles of Incorporation or of these Bylaws, a different
vote is required in which case such express provision shall
govern and control the decision of such question. The
shareholders present at a duly organized meeting may
continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to
leave less than a quorum.
2.08 Method of Voting.
Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except to the extent that the
voting rights of the shares of any class or classes are
limited or denied by the Articles of Incorporation. At any
meeting of the shareholders, every shareholder having the
right to vote may vote either in person, or by proxy
executed in writing by the shareholder or by his duly
authorized attorney-in-fact. No proxy shall be valid after
eleven months from the date of its execution, unless
otherwise provided in the proxy. Each proxy shall be
revocable unless expressly provided therein to be
irrevocable, and unless otherwise made irrevocable by law.
Each proxy shall be filed with the secretary of the
corporation prior to or at the time of the meeting. voting
for directors shall be in accordance with paragraph 3.06.
Any vote may be taken via voice or by show of hands unless
someone entitled to vote objects, in which case written
ballots shall be used.
2.09 Record Date; Closing Transfer Books:
The Board of Directors may fix in advance a record date for
the purpose of determining shareholders entitled to notice
of or to vote at a meeting of the shareholders, the record
date to be not less than ten nor more than fifty days prior
to the meeting; or the Board of Directors may close the
stock transfer books for such purpose of or a period of not
less than ten nor more than fifty days prior to such
meeting. In the absence of any action by the Board of
Directors, the date upon which the notice of the meeting is
mailed shall be the record date. 2.10 Action Without
Meeting: Any action required by statute to be taken at a
meeting of the shareholders, or any action which may be
taken at a meeting of the shareholders, may be taken without
a meeting if a consent in writing, setting forth the action
so taken, shall be signed by All of the shareholders. The
signed consent, or a signed copy shall be placed in the
minute book.
2.11 Order of Business at Meetings:
The Order of business at annual meetings and so far as
practicable at other meetings of shareholders shall be as
follows unless changed by the Board of Directors:
(1) Call to order
(2) Proof of due notice of meeting
(3) Determination of quorum and examination of proxies
(4) Announcement of availability of voting list
(5) Announcement of distribution of annual statement
(6) Reading and disposing of minutes of last meeting of
shareholders
(7) Reports of officers and committees
(8) Appointment of voting-inspectors
(9) Unfinished business
(10)New business
(11)Nomination of Directors
(12)Opening of polls for voting
(13)Recess
(14)Reconvening; closing of polls
(15)Report of voting inspectors
(16)Other business
(17)Adjournment
Article 3: Directors
3.01 Management:
'The business and affairs of the corporation shall be
managed by the Board of Directors who may exercise all such
powers of the Corporation and do all such lawful acts and
things as are not (by statute or by the Articles of
Incorporation or by these Bylaws) directed or required to be
exercised or done by the shareholders. The Board of
Directors shall have the power to delegate its authority
over the day-to-day management of the corporation to any
officer or agent upon such terms as the Board of Directors
shall determine.
3.02 Number; Qualification; Election; Term:
The Board of Directors shall consist of no less than one (1)
nor more than ten (10) directors, as determined by the
shareholders from time to time, but no decrease in the
number of directors shall have the effect of shortening the
term of any incumbent director. Directors need not be
shareholders nor residents of any particular state. The
directors shall, be elected at the annual meeting of the
shareholders, except as provided in paragraph 3.04. Each
director elected shall hold office until his successor shall
be elected and shall qualify.
3.03 Removal:
Any director may be removed either for or without cause at
any special or annual meeting 'of shareholders, by the
affirmative vote of a majority in number of shares of the
shareholders present in person or by proxy at such meeting
and entitled to vote for the election of such director if
notice of, intention to act upon such matter shall have been
given in the notice calling such meeting.
3.04 Vacancies:
Any vacancy occurring in the Board of Directors (by death,
resignation, removal or otherwise) may be filled by an
affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors is
present. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office.
3.05 Election of Directors:
At each election for directors,' each shareholder shall have
the right to vote the number of voting shares owned by him
for as many persons as there are directors to be elected,
or, if permitted by the Articles of incorporation, he may
cumulate his votes by giving one candidate as many votes. as
the number of such directors multiplied by the number of his
shares shall equal, or by distributing such votes on the
same principle among any number of candidates. Any
shareholder who intends to cumulate his votes as herein
authorized shall give written notice of such intention to
the secretary of the Corporation on or before the. day
preceding the election at which such shareholder intends to
cumulate his votes.
3.06 Place of Meeting:
Meetings of the Board of Directors, regular or special, may
be held either within or without the State of Texas.
3.07 First Meeting :
The first meeting of each newly elected board shall be held
without further notice immediately following the annual
meeting of shareholders, and at the same place, unless (by
unanimous consent of the directors then elected and serving)
such time or place shall be changed.
3.08 Regular Meetings:
Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to
time be determined by the board.
3.09 Special Meetings:
Special meetings of the Board of Directors may be called by
the president on three days notice to each director, either
personally or by mail or by telegram. . special meetings
'shall be called by the president' or secretary in like
manner and an like notice on the' written request of two
directors. Except as otherwise expressly provided by
statute, or by the Articles of Incorporation, or by these
Bylaws, neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in a
notice of waiver of notice.
3.10 Quorum; Majority Vote:
At all meetings of the .Board of Directors a majority of the
number of directors fixed by these Bylaws shall constitute a
quorum for the transaction of business. The act of a
majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of
Directors, except as otherwise specifically provided by
'statute or by the Articles of incorporation or by these
Bylaws. If a quorum is not present at a meeting of the Board
of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present.
3.11 Compensation:
By resolution of the Board of Directors, the directors may
be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall
preclude any director, from serving the Corporation in any
other capacity and receiving compensation therefor. Members
of special or standing committees may, by resolution of the
Board of Directors, be allowed like compensation f or
attending committee meetings.
3.12 Procedure:
The Board of Directors shall keep regular minutes of its
proceedings. The minutes shall be placed in the minute back
of the Corporation.
3.13 Action Without Meeting:
Any action required or permitted to be taken at a meeting of
the Board of Directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, is
signed by all the members of the Board of Directors. Such a
consent shall have the same force and effect as a unanimous
vote at a meeting. The signed consent, or a signed copy,
shall be placed in the minute book.
3.14 Interested Directors, Officers and shareholders:
(a) if paragraph (b) below is satisfied no contract or other
transaction between the corporation and any Of its
directors, officers or shareholders (or any corporation or
firm in which any of them are directly or indirectly
interested) shall be invalid solely because of this
relationship or because of the presence of such director,
officer or shareholder at the meeting authorizing such
contract or transaction, or his participation in such
meeting or authorization.
(b) Paragraph (a) above shall apply only if:
(1) The material facts of the relationship or interest of
each such director, officer or shareholder are known or
disclosed;
(i) To the Board of Directors and it nevertheless authorizes
or ratifies the contract or transaction by a majority of the
directors present, each such interested director to be
counted in determining Whether a quorum is present but not
in calculating the majority necessary to carry the vote; or
(ii) To the shareholders and they nevertheless authorize or
ratify the contract or transaction by a majority of the
shares present, each such interested person to be counted
for quorum and voting purposes; or
(2) The contract or transaction is fair to the Corporation
as of the time it is authorized or ratified by the Board of
Directors, a committee of the board, or the shareholders.
(c) This provision shall not be construed to invalidate a
contract or transaction which would be valid in the absence
of this provision.
Article 4: Executive Committee
4.01 Designation:
The Board of Directors may, by resolution- adopted-by a
majority of the whole board, designate an executive
committee.
4.02 Number; qualification; Term:
The executive committee shall consist of two or more
directors (one of whom shall be the president unless the
president is not a member of the Board of Directors). The
executive committee shall serve at the pleasure of the Board
of Directors.
4.03 Authority:
The executive committee, to the extent provided in such
resolution, shall have and may exercise all of the authority
of the Board of Directors in the management of the business
and affairs of the Corporation, except where action of the
full Board of Directors is required by statute or by the
Articles of Incorporation, and shall have power to authorize
the seal of the corporation to be affixed to all papers
which may require it.
4.04 Change in Number:
The number of executive committee -members may be increased
or decreased (but not below two) from time to time by
resolution adopted by a majority of the whole Board of
Directors.
4.05 Removal:
Any member of the executive committee may be removed by the
Board of Directors by the affirmative vote of a majority of
the whole board whenever in its judgment the best interests
of the Corporation will be served thereby.
4.06 Vacancies:
A vacancy occurring in the executive committee (by death,
resignation, removal or otherwise) may be filled by the
Board of Directors in the manner provided for original
designation in paragraph 4.01.
4.07 Meetings:
Time, place and notice (if any) of executive committee
meetings shall be determined by the executive committee.
4.08 Quorum; Majority Vote:
At meetings of the executive committee, a majority of the
number of members designated by the Board of Directors shall
constitute a quorum for the transaction of business. The act
of a majority of the members present at any meeting at which
a quorum is present shall be the act of the executive
committee, except as otherwise specifically provided by
statute or by the' Articles of Incorporation - or by these
Bylaws. if a quorum is not present at a meeting of the
executive committee, the members present thereat may adjourn
the meeting from tine to time, without notice- other than
announcement at the meeting until a quorum is present.
4.09 Compensation:
By resolution of the Board of Directors, the members of the
executive committee may be paid their expenses, if any, of
attendance at each meeting of the executive committee and
may be paid a fixed sum for attendance at each meeting of
the executive committee or a stat6d salary as a member of
the executive committee NO such payment shall preclude any
member of the executive committee from serving the
Corporation in any other capacity and receiving compensation
therefor.
4.10 Procedure:
The executive committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors
when required. The minutes of the Proceedings of the
executive committee shall be placed in the Minute book of
the Corporation.
4.11 Action Without Meeting:
Any action required or permitted to be taken at a meeting of
the executive committee may be taken without a meeting if a
consent in writing, setting forth the action so taken is
signed by all the members of the executive committee. Such
consent shall have the same force and effect as a unanimous
vote at a meeting. The signed consent, or a signed copy,
shall be placed in the minute book.
4.12 Responsibility:
The designation of an executive committee and the delegation
of authority to it shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility
imposed upon it or him by law.
Article 5: Notice
5.01 Method:
Whenever by statute or the Articles of Incorporation or
these Bylaws, notice is required to be given to director or
shareholder and no provision is made as to how the notice
shall be. given, it shall not be construed of Mean personal
notice, but any such notice may be given (a) in writing, by
mail, postage prepaid addressed to the director or
shareholder at the address appearing on the books of the
Corporation, or (b) in any other method permitted by law.
Any notice required or permitted to be given by mail shall
be deemed given at the time when the same is thus deposited
in the United States Mails.
5.02 Waiver:
Whenever, by statute or the Articles of Incorporation or
these Bylaws notice is required to be given to shareholder
or director, a waiver thereof in -writing signed by the
person or persons entitled to such 'r notice, whether before
or after the time stated in such notice, shall be equivalent
to the giving of such notice. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting,
except where a director attends for the express purpose of
objecting to the transaction of any business on the ground
that the meeting is now lawfully called or convened.
Article 6: Officers and Agents
6.01 Number; Qualification; Election; Term:
(a) The Corporation shall have; (1) a president, a vice-
president, a secretary and a treasurer, and (2) such other
officers (including a chairman of the board and additional
vice-presidents) and. assistant officers and agents as the
Board of Directors may think necessary.
(b) No officer or agent need be a. shareholder, a director
or a resident of Texas.
(c) officers named in paragraph 6.01(a)(1) shall be elected
by the Board of Directors on the expiration of an officer's
term or whenever a vacancy exists. Officers and agents named
in paragraph 6. 01 (a) (2) may be elected by the board at
any meeting.
(d) Unless otherwise specified by the board at the time of
election or appointment, or in an employment contract
approved by the board, each officer's and agent's term shall
end at the first meeting of directors after the next annual
meeting of shareholders. He shall serve until the end of his
term or, if earlier, his death, resignation, or removal.
(e) Any two-or more offices may be told by the same person.
6.02 Removal: Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of
Directors whenever in its Judgment the best interests of the
Corporation will be served thereby. Such removal shall be
without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or
agent shall not of itself create contract rights.
6.03 Vacancies:
Any vacancy occurring in any office of the Corporation (by
death, resignation, removal or otherwise) may be filled by
the Board of Directors.
6.04 Authority:
Officers and agents shall have such authority -and perform
such duties in the management of the Corporation as are
provided in these Bylaws or as may be determined by
resolution of the Board of Directors not inconsistent with
these Bylaws.
6.05 Compensation:
The compensation of officers and agents shall be fixed from
time to time by the Board of Directors.
6.06 President:
The president shall be the chief executive officer of the
Corporation; he shall preside at all meetings of the
shareholders and the Board of Directors, shall have general
and active management of the business and affairs of the
corporation, shall see that all orders and resolutions of
the board are carried into effect. He shall perform r;.1ach
other duties and have such other authority and powers as the
Board of Directors may from time to time prescribe.
6.07 Vice President:
The vice presidents in the order of their seniority, unless
otherwise determined by the Board of Directors, shall, in
the absence or disability of the president, perform the
duties and have the authority and exercise the powers at the
president. They shall perform such other duties and have
such other authority and powers as the Board of Directors-
may from time to time prescribe or as the president may from
time to time delegate.
6.08 Secretary:
(a) The Secretary shall attend All meetings of the Board of
Directors and all meetings of the shareholders and record
all votes and the minutes of all proceedings in a book to be
kept for that purpose and shall perform like duties f or the
executive committee when required.
(b) He shall give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the
Board of Directors.
(c) He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors
or the executive committee, affix the same to any instrument
requiring it and when so affixed, it shall be attested by
his signature or by the signature of the treasurer or an
assistant secretary.
(d) He shall be under the supervision of the president. He
shall perform such other duties and have such other
authority and powers as the Board of Directors may from time
to time prescribe or as the president may from time to time
delegate.
6.09 Assistant Secretary:
The assistant secretaries in the order, of their seniority,
unless Otherwise determined by the Board of Directors,
shall, in the absence or disability of the secretary,
perform the duties and have the authority and exercise the
powers of the secretary. They shall perform such other
duties and have such other powers as the Board of Directors
may from time to time prescribe or as the president may from
time to time delegate.
6.10 Treasurer:
(a) The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate
accounts of receipts and disbursements of the Corporation
and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
(b) He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the president
and directors, at the regular meetings of the board, or
whenever they may require it, an account of all his
transactions as treasurer and of the financial condition of
the Corporation.
(c) If required by the Board of Directors, he shall give the
Corporation a bond in such form, in such sum, and with such
surety or sureties as shall be satisfactory to the board for
the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all
books, papers; vouchers, money and other property of
whatever kind in his possession or under his control
belonging to the Corporation.
(d) He shall perform such other duties and have such other
authority and powers as the Board of Directors, may from
time to time prescribe or as the president may from time to
time delegate.
6.11 Assistant Treasurer:
The assistant treasurers in the order of their seniority
unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the treasurer,
perform the duties and have the authority and exercise the
powers of the treasurer. They shall perform such other
duties and have such other powers as the Board of Directors
may from time to time delegate.
Article 7: Certificates and Shareholders
7.01 Certificates:
Certificates in the form determined by the Board of
Directors shall be delivered representing all shares to
which shareholders are entitled. Certificates shall be
consecutively numbered and shall be entered in the books of
the corporation as they are issued. Each certificate shall
state on the face thereof the holder's name, the number and
class of shares, the par value of shares or a statement that
such shares are without par value, and such other matters as
may be required by law. They shall be signed by the
president or a vice president and such other officer or
officers as the Board of Directors shall designate, and may
be sealed with the seal of the Corporation or a facsimile
thereat. If any certificate is countersigned by a transfer
agent, or an assistant transfer agent or registered by a
registrar (either of which is other than the Corporation or
an employee of the Corporation), the signature of any such
officer may be a facsimile.
7.02 Issuance:
Shares (both treasury and authorized but unissued) may be
issued for such consideration (not less than par value) and
to such persons as the Board of Directors may determine from
time to time. Shares may not be issued until the full amount
of the consideration, fixed as provided by law, has been
paid.
7.03 Payment for Shares:
(a) Kind. The consideration for the issuance of shares shall
consist of money paid, labor done, (including services
actually performed for the Corporation) or property
(tangible or intangible) actually received. Neither
promissory notes nor the promise of future services shall
constitute payment for shares.
(b) Valuation. in the absence of fraud in the transaction,
the judgement of the Board of Directors as to the value of
consideration received shall be conclusive.
(c) Effect. When consideration, fixed as provided by law,
has been paid, the shares shall be deemed to have been
issued and shall be considered fully paid and nonassessable.
(d) Allocation of Consideration. The consideration received
for shares shall be allocated by the Board of Directors, in
accordance with law, between stated capital and capital
surplus accounts.
7.04 Subscriptions:
Unless otherwise provided in the subscription agreement,
subscriptions of shares whether made before or after
organization of the corporation, shall be paid in full at
such time or in such installments and at such times as shall
be determined by the Board of Directors. Any call made by
the Board of Directors for payment of subscriptions shall be
uniform as to all shares of the same series, as the case may
be. In case of default in the payment an any installment or
call when payment is due, the Corporation may proceed to
collect the amount due in the same manner as any debt due to
the Corporation.
7.05 Lien:
For any indebtedness of a shareholder to the Corporation,
the Corporation shall have a first and prior lien an all
shares of its stock owned by him and an all dividends or
other distributions declared thereon.
7.06 Lost, Stolen or Destroyed Certificates:
The Corporation shall issue a new certificate in place of
any certificate for shares previously issued if the
registered owner of the certificate:
(a) Claim. Makes proof in affidavit form that it has been
lost, destroyed or wrongfully taken; and
(b) Timely Request. Requests the issuance of a new
certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in
good faith and without notice of an adverse claim;. and
(c) Bond. Gives a bond in such form, and with such surety or
sureties, with fixed or open penalty, as the Corporation may
direct, to indemnify the Corporation (and its transfer agent
and registrar, if any) against any claim that may be made an
account of the alleged loss, destruction, or theft of the
certificate; and
(d) Other Requirements. Satisfies any other reasonable
requirements imposed by the Corporation.
When a certificate has been lost, apparently destroyed or
wrongfully taken, and the holder of record fails to notify
the Corporation within a reasonable time after he has notice
of it, and the corporation registers a transfer of the
shares represented by the certificate before receiving such
notification, the holder of record is precluded from making
any claim against the corporation for the transfer or for a
new certificate.
7.07 Registration of Transfer:
The corporation shall register the transfer of a certificate
for shares presented to it for transfer if:
(a) Endorsement. The certificate is properly endorsed by the
registered owner or by his duly authorized attorney; and
(b) Adverse claims. The Corporation has no notice of an
adverse claim or has discharged any duty to inquire into
such a claim; and
(c) Collection of Taxes. Any applicable law relating to the
6ollection of taxes has been complied with.
7.08 Registered Owner. Prior to due presentment for
registration of transfer of a certificate for shares, the
Corporation may treat the registered owner as the. person
exclusively entitled to vote, to receive notices and
otherwise to exercise all the rights and powers of a
shareholder.
Article 8: General Provisions
8.01 Dividends and Reserves:
(a) Declaration and Payment. subject to statute and the
Article of Incorporation, dividends may be declared by the
Board of Directors at any regular or special meeting and may
be paid in cash, in property, or in shares of the
Corporation. The declaration and payment shall be at the
discretion of the Board of Directors.
(b) Record Date. The Board of Directors may fix in advance a
record date for the purpose of determining shareholders
entitled to receive payment of any dividend, the record date
to be not more than fifty days prior to the payment date of
such dividend or the Board of Directors may not close the
stock transfer books for such purpose for a period of not
more than fifty days prior to the payment date of such
dividend. In the absence of any action by the Board of
Directors, the date upon which the Board of Directors adapts
the resolution declaring the dividend shall be the record
date.
(c) Reserves. By resolution the Board Of Directors may
create such reserve or reserves out of the earned surplus of
the Corporation as the directors from time to time, in their
discretion, think proper to provide for contingencies, or to
equalize dividends, or to repair or maintain any property of
the Corporation, or for any other purpose they think
beneficial to the Corporation. The directors may modify or
abolish any such reserve in the manner in which it was
created.
8.02 Books and Records: The Corporation shall keep correct
and complete books-and records of account and shall keep
minutes of the proceedings of its shareholders and Board of
Directors, and shall keep at its-registered office or
principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders,
giving the names and addresses of all shareholders and the
number and class of the shares held by each.
8.03 Annual Statement: The Board of Directors shall mail to
each shareholder of record, at least 10 days before each
annual meeting a full and clear statement of the business
and condition of the Corporation, including a reasonably
detailed balance sheet, income statement, and Surplus
statement, all prepared in conformity with generally
accepted accounting principles applied on a consistent basis
(and certified by independent public accountants).
8.04 Checks and Notes:
All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other
person or persons' as the Board of Directors may from time
to time designate.
8.05 Fiscal Year:
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
8.06 Seal:
The Corporation Seal (of which there may be one or more
exemplars) shall contain the name of the Corporation and the
name of the state of incorporation. The seal may be used by
impressing it or reproducing a facsimile of it, or
otherwise.
8.07 Resignation:
Any director, officer or agent may resign by giving written
notice to the president or the secretary. The resignation
shall take affect at the time specified therein, or
immediately if no time is specified therein. Unless
otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
8.08 Amendment of Bylaws:
The power to alter, amend or repeal these Bylaws, or to
adopt new Bylaws for the Corporation, shall be vested in the
directors, subject, however, to the right of the
shareholders to repeal or change any such action by the
directors.
8.09 Construction:
Whenever the context so requires, the masculine shall
include the feminine and neuter, and the singular shall
include the plural, and conversely. If any portion of these
Bylaws shall be invalid or inoperative, then, so far as is
reasonable and possible:
(a) The remainder of these Bylaws shall be considered valid
and operative; and
(b) Effect shall be given to the intent manifested by the
portion held invalid or inoperative.
8.10 Indemnification:
Any and all of the Corporation's directors or officers or
former directors or officers or any person who may have
served at the Corporation's request as a director or officer
of another Corporation in which this Corporation owns shares
of capital stock or of which this Corporation * is a
creditor or the heirs or legal representatives of any such
officer or director shall be indemnified by the Corporation
against and held harmless from any and all claims which may
be asserted against them or any of them upon or arising out
of acts of omission or commission on the part of such
officers or directors in their capacities as either officers
or directors of this Corporation or adjudged by final
judgment of a court of competent jurisdiction to be based
upon willful misconduct in the performance of duty. Such
indemnification shall extend to proceedings ' settled or
otherwise disposed of without a determination on the merits,
provided that the Board of Directors shall be advised by
counsel for the Corporation that in the opinion of such
counsel the person seeking such indemnity was not guilty of
willful misconduct in the performance of duty, and provided
further that in the opinion of the Board of Directors the
amount of such settlement is fair and reasonable under all
existing circumstances. Without limitation on the generality
of the foregoing, the indemnification herein provided shall
extend to and include reimbursement for and indemnification
against all costs and expenses (including counsel fees)
reasonably incurred in investigating or in connection with
the preparation and/or defense of any action, suit,
proceeding or claim.
8.11 Table of Contents; Headings.
The table of contents and headings are for organization,
convenience and clarity. in interpreting these Bylaws they
shall be subordinated in importance to the other written
material.
